金融業遵法經營之嚴峻考驗－－實質關係人之認定標準

The Severe Test for the Legal Compliance of Financial Industry: The Criteria for Identifying Substantive Related Parties

所謂實質關係人，不論是公司法令、證券管理法令或金融法令，均未設有明確定義，導致企業在業務經營、金融監理及司法實務在認定上，時有爭議。就公開發行公司之交易及財務報告之資訊揭露而言，現行法令要求判斷交易對象是否為關係人時，除注意其法律形式外，並應考慮實質關係；且金融監督管理委員會不僅藉由具體個案之裁罰，亦透過發布若干行政函令，要求金融業應建立實質關係人交易之控管機制。本文先從介紹實質關係人之概念及規範基礎出發，再分別論述實質關係人之認定標準及類似概念、實質關係人是否適用關係人交易規範之疑義等問題，期能解決實務爭議。最後，提出本文之結論及建議。

The so-called substantive related party has not been clearly defined in company act, securities exchange act or financial law and regulation, which has led to disputes in the identification of business operations, financial supervision and judicial practice. As far as the disclosure of information on the transactions and financial reports of public companies are concerned, the current laws and regulations require that when judging whether the transaction subject is a related party, should pay attention to its legal form and consider the substantive relationship. The Financial Supervisory Commission not only uses specific cases ruling, also requires the financial industry to establish a control mechanism for transactions with substantive parties by issuing several administrative orders. This article starts with the introduction of the concept and normative basis of substantive related party, and then discusses some issues such as the criteria for identifying substantive related party and similar concept. In addition, it also analyzes whether substantive related party is applicable to laws and regulations of related party transactions to resolving practical disputes. Finally, the conclusions and recommendations of this article are put forward.